Duncan Life & Acc. Ass'n v. Ross

• Decision Date: 29 October 1935
• Docket Number: 25517.
• Parties: DUNCAN LIFE & ACCIDENT ASS'N v. ROSS.
• Court: Oklahoma Supreme Court

50 P.2d 690

174 Okla. 389, 1935 OK 1037

DUNCAN LIFE & ACCIDENT ASS'N v. ROSS.

No. 25517.

Supreme Court of Oklahoma

October 29, 1935

Syllabus by the Court.

1. Statements made in an application for a life insurance policy issued by virtue of section 10631, Oklahoma Statutes 1931 are warranties, and where there is a conflict in evidence concerning the truth or falsity of the warranties it is a question for the jury.

2. Insurer, in action on life insurance policy, asserting that insured was not in good health at time the policy was delivered, has burden of proof, and whether insured is in good health at time of delivery of policy depends upon particular facts and circumstances and is generally question of fact for jury or court.

3. In an action on a life insurance policy, nonexpert opinion evidence of the physical condition and appearance of an individual is generally admissible.

4. In an action on a life insurance policy, the death certificate is not proof of any disease suffered by the insured at the time the policy was taken out, but is only prima facie evidence of the facts therein stated.

Appeal from District Court, Stephens County; Freeman E. Miller Judge.

Action by Lovina Ross against the Duncan Life & Accident Association. From a judgment for plaintiff, defendant appeals.

Affirmed.

Sandlin & Winans, and H. W. Sitton, all of Duncan, for plaintiff in error.

Paul D Sullivan and Sullivan & Marmaduke, all of Duncan, for defendant in error.

PER CURIAM.

The parties will be referred to as plaintiff and defendant as in the court below. The plaintiff, as beneficiary in a policy of insurance issued by the defendant upon the life of her daughter, Janie Stanley, who died on April 28, 1932, brought suit to recover thereon. The plaintiff made the allegations that the defendant executed and delivered a life insurance policy in the principal sum of $1,000 to Janie Stanley, and that thereafter all premiums charged by the defendant and by virtue of the policy were paid up unto the time of the death of the insured, and that all other requirements of said policy were complied with by the insured, and that proper proof of death of the insured was filed with the defendant and that the defendant had failed to pay the beneficiary the proceeds of said policy and ask for judgment for the amount thereof.

The defendant in its answer, after making a general denial, set up an affirmative defense, which, in part, is as follows: "This defendant alleges that said Janie Stanley, at the time of the making of application for insurance with defendant, was not an insurable risk and that the statements made by said insured in her application for insurance were not true and that the condition of the health of said applicant at the time of the making of said application was not such as to entitle said applicant to said policy of insurance, which facts were well known to said applicant at the time of the making of said application and the issuance of said policy pursuant to said application; that for some time prior to the making of said application said insured was in bad health and was suffering from an incurable malady and disease which facts said insured concealed from this defendant and failed to disclose the same to this defendant although she had full and complete knowledge of the same; that by reason of said willful concealment of said facts, this defendant relying upon the truth and accuracy of the statements in said application and believing the same to be true, issued said policy to said applicant and said applicant thereby perpetrated a fraud upon this defendant, and on account of such fraud plaintiff, as the beneficiary in said policy of insurance, is not entitled to recover the amount sued for in plaintiff's petition." The defendant then tendered the premiums paid upon the policy to plaintiff.

To this answer the plaintiff replied, which, in substance, was a general denial of all the facts set up in defendant's answer.

The cause was tried to a jury, which returned a verdict for the plaintiff beneficiary for the amount of the policy, upon which judgment was rendered in favor of plaintiff. The defendant insurance company appeals, assigning as errors the insufficiency of the evidence and that the judgment is contrary to law.

The defendant is a mutual benefit association, operating under the laws of the state of Oklahoma, and the contracts issued on in this case and the application therefor are governed by section 10631, Oklahoma Statutes 1931, which, in part, provides as follows: "Applicants for membership in mutual benefit associations shall be required to pass a medical or physical examination such as may be required by the by-laws of the association, or benefit certificates may be issued upon the warranty by the applicant that the answers and statements to the questions as to the conditions of health of the applicant and all other representations made in the application for a benefit certificate are true and are to be used as the basis and consideration upon which said benefit certificate is issued; provided, that in addition to the answers and representations of the applicant for membership, as herein provided, the applicant shall give the name and address of his or her family physician and shall furnish to the association a certificate of such physician, or, if applicant has no family physician, a certificate of a licensed physician, that he knows the applicant and believes that the applicant is a good, insurable risk."

The facts in this case reveal that the plaintiff and her two boys had a policy with the defendant, and that on the 13th day of April, 1931, plaintiff made an application for a policy on her daughter, Janie Stanley, and on the 14th day of April, 1931, the defendant, having procured a physician's certificate from the family doctor of the insured, issued policy forming the basis of this action.

In the application, among other questions propounded, there are two which the defendant set up as having been falsely answered. The first one: "Is your health good at this time? Yes." And the second question: "Have you ever had tuberculosis? No." This application and these answers were made by the mother and signed as follows: "Applicant, Janie Stanley, by mother." Also in the physician's certificate, the defendant complained of the answer made by the doctor to the question: "Does applicant now have or ever had (b) tuberculosis? No." Defendant contends that these statements are false, and if it were not for them they would not have issued the policy. Defendant thereby tendered the defense of fraud. In case of Mutual Life & Accident Ass'n of Frederick v. Moore, 162 Okl. 260, 20 P.2d 168, it is said: "The defense of the insurer was an affirmative one. The gist of the defense is that the insured practiced fraud upon the insurer in obtaining the policy of insurance. In Sovereign Camp, W. O. W., v. Brown, 94 Okl. 277, 221 P. 1017, 1022, this court held: 'Fraud is a fact to be proved as any other fact, by competent evidence. * * *"'

Defendant offered evidence showing that sputum examinations were made on April 18, 1931, and December 14, 1931, and that both examinations showed positive for tuberculosis. The defendant also offered a witness who was a practical nurse, and who stated that she knew Janie Stanley since 1920 and that Janie Stanley told her that she had sputum tests made in 1931; that the first test came back positive and the second test came back negative; that she didn't go to bed in February when she had the flu, and in the summer of 1931 she went to dances and had apparently recovered from the attack of flu. One of the defendant's expert witnesses was asked the following question: "From your examination and knowledge of tuberculosis, how long had this patient had tuberculosis? A. I cannot say definitely. The physical findings were that she had tuberculosis. That was corroborated by the X-ray findings, the history of the case brought out the fact that she had probably been sick of tuberculosis since February, 1931, that a history of positive sputum examination in March, 1931, showing the germs of tuberculosis were present." That part of the answer concerning the history of the case was stricken by the court. Later this same witness testified as follows: "Q. From your examination, you would think that she likely had that disease, tuberculosis, before March, 1931? A. No doubt. Probably she had it before she broke down with the flu in February, and it took the flu to break down her resistance."

The defendant offered in evidence on cross-examination the proof of death which, according to the attending physician in the last sickness of the insured, revealed that the immediate...